The Immigration Service has announced its intention to revise the procedure for certain potential “green card” applicants who have to process their applications for an Immigrant Visa at the American Consulate in their home country. The new rules, when and if enacted, will allow applicants who require a “waiver” of the 3 and 10 year bar to reentry to the US to apply for the waiver BEFORE travelling to their home country for their Immigrant Visa interview. This will drastically reduce the amount of time the applicant will be separated from his/her American family.

Background

With some exceptions, applicants for a green card are barred from obtaining an immigrant visa if they have been unlawfully present in the US for more than 6 months. These applicants are barred from reentry to the US for 3 years. If the unlawful presence extends beyond one year, they are barred for 10 years.

These applicants may seek a waiver of the 3/10 year bar, and obtain an immigrant visa, if they can establish that their US citizen family members will suffer “extreme hardship” if they are separated for such a long period.

This situation is most often faced by applicants who entered the US without inspection. These applicants are already precluded by law from applying for Adjustment of Status in the US. Their only recourse is to seek an Immigrant Visa at the American Consulate in their home country.

These applicants accrue unlawful presence from day one of their entry. If they remain in the US for more than 6 months, they are subject to the bar which is “triggered” by their departure from the US.

Current Procedure

An applicant described above who is now married to a US citizen and wishes to obtain a “green card” must now take the following steps:

1. The US citizen spouse must file a Visa Petition to establish that they have a valid, bonafide relationship. 2. Upon approval, the applicant must complete paperwork with and pay a fee to the Department of State’s National Visa Center. 3. The NVC will then schedule an Immigrant Visa Interview at the American Consulate in the home country. 4. The applicant must depart from the US to attend the interview, thus triggering the 3 or 10 year bar. 5. At the interview the applicant’s visa application will be denied. 6. ONLY THEN can the applicant apply for the waiver and attempt to establish “extreme hardship.” 7. The waiver application will be sent by the Consulate back to USCIS. 8. The applicant has to wait POSSIBLY FOR MANY MONTHS in the home country while the waiver application is considered. 9. If the waiver is approved, the immigrant visa can be issued and only then can the applicant return to his/her family in the US. 10. If the waiver is denied, the applicant will have to wait outside the US for either 3 or 10 years before returning.

Immigration Service Proposal

The proposed change, when and if enacted, would allow the applicant to file the waiver application after the Visa Petition has been approved and have the opportunity to demonstrate extreme hardship and before travelling to the home country. Upon approval of the waiver, the applicant can expect to spend just a short time in the home country before being reunited with his/her family in the US.

Who May Benefit

Not every Immigrant Visa applicant who needs a waiver of the 3/10 year bar will be eligible for the new procedure. USCIS proposes to limit eligibility to applicants who can establish extreme hardship to a US citizen spouse or parent. It will not apply to applicants who claim hardship to a Lawful Permanent Resident family member. Those applicants can still seek the waiver, but can apply only after travelling to their home country.

Individuals who require waivers of other grounds of inadmissibility (such as visa fraud or a criminal record) would also be excluded from the new procedure.

Caution

This procedure is not yet in effect and in fact, formal proposed rules have not been published. While we believe it is very likely to be implemented since there will be some cost savings involved for the government, we do not know how long it may take.

Our Advice

There are at least two categories of individuals who ought to consider seeking legal advice at this time:

1. Any applicant who has initiated the process with a Visa Petition already filed or approved, and who was contemplating returning to the home country in the near future, with the expectation of applying for the extreme hardship waiver at the Consulate. Some may find it prudent to delay their plans to monitor the implementation of the proposal. 2. A potential applicant who has a US citizen spouse or parent and has not started the process because they were unwilling to depart under these circumstances. These individuals might decide to start the process with the filing of the Visa Petition since that first step alone may take many months. If they choose to do so and if the rule is NOT implemented they may still defer their departure (caution: there are some risks involved in this approach which why it is desirable to seek sound legal advice).